IN THE CASE OF:

		BOARD DATE:  11 February 2014

		DOCKET NUMBER:  AR20130022305


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, reconsideration of his earlier request to have the U.S. Army Criminal Investigation Command (CID) Report of Investigation (ROI) Number 2010-CIDXXX-XXXXX-7F changed to show he was overpaid $8,700.00 in basic allowance for housing (BAH), not $40,434.00.

2.  The applicant states:

	a.  He was not clear in his original request.  He was not requesting dismissal of the entire amount.

	b.  His case was dismissed because there was no evidence he intentionally committed the offense.

	c.  He was instructed by Trial Defense Services (TDS) to work out a repayment plan with the Defense Finance and Accounting Service (DFAS) to repay the $8,700.00, which he did.  However, DFAS shows he owes $40,000.00.

	d.  His request for remission of the debt was returned without action.

	e.  His request for correction of the CID ROI was denied.

	f.  He has exhausted all the available means to fix this problem without a divorce decree, but neither he nor his ex-wife has the divorce decree.  He feels he has repaid all that he owes.

3.  The applicant provides:

* Summary of Investigative Activity, dated 19 January 2010
* DA Form 4856 (Developmental Counseling Form), dated 26 February 2010
* character reference memorandum from his company commander, Captain M____ R. B____, dated 18 March 2010
* character reference memorandum from his battalion commander, Major M____ S. M____, dated 10 February 2011
* self-authored memorandum, dated 24 February 2011, with Headquarters, U.S. Army Garrison-Hawaii, Policy Memorandum USAG-HI-28, Certificates of Nonavailability, dated 20 February 2008
* Fort Carson TDS memorandum for record, dated 7 April 2011
* HRC memorandum, dated 21 September 2011, subject:  Remission or Cancellation of Indebtedness – (Applicant)
* CID Crime Records Center letter, dated 14 June 2013

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130015859 on 10 October 2013.

2.  The applicant provided new evidence and a new argument which were not previously considered and warrant consideration by the Board.

3.  The applicant is currently serving on active duty in the Regular Army in the rank/grade of sergeant/E-5.

4.  The applicant's Army Military Human Resource Record is devoid of the facts and circumstances surrounding his criminal charges.  These proceedings are based upon evidence and commentary provided by the applicant.

5.  As new evidence, the applicant provided a copy of a Summary of Investigative Activity, dated 19 January 2010, that states, in part, "About 0930, 19 Jan 10, SA H____ reviewed BAH and PCS [permanent change of station] documents pertaining to SGT D____, and calculated the total estimated loss to the U.S. Government to be:  $40,434.00 if SGT D____ was not entitled to live outside the barracks, or $8,710.02 if SGT D____ was entitled to live outside the barracks with no dependents."

6.  The applicant provided a DA Form 4856, dated 26 February 2010, which shows he was counseled for receiving approximately $8,700.00 in BAH which he was not authorized.

7.  The applicant provided a Fort Carson TDS memorandum for record, dated 7 April 2011, which states that all proceedings were dismissed and no disciplinary action was taken against him regarding the overpayment of BAH.

8.  The applicant provided a letter from the Director, CID Crime Records Center, dated 14 June 2013, denying his request to correct ROI Number 
2010-CIDXXX-XXXXX-7F.

9.  He argued that he was overpaid $8,700.00 in BAH, not $40,434.00, and he repaid all that he owed.

10.  He did not provide any evidence showing the actual amount of his indebtedness to the U.S. Government.

11.  Department of Defense Instruction 5505.7 and Army Regulation 195-2 (Criminal Investigation Activities) contain the authority and criteria for titling decisions.  They state, in part, that titling only requires credible information that an offense may have been committed.  They further indicate that regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the only way to administratively remove a titling action from the Defense Clearance and Investigations Index is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination.

DISCUSSION AND CONCLUSIONS:

1.  His new evidence and new argument have been noted; however, they are not sufficient to merit granting the applicant's request.

2.  The specific facts and circumstances surrounding the amount of his indebtedness to the U.S. Government are not available.

3.  By law and regulation, titling only requires credible information that an offense may have been committed.  It further indicates that regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the only way to administratively remove a titling action from the DCII is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination.  

4.  The ROI pertaining to the applicant does not say he owed $40,434.00 (versus the $8,700.00 he states he had to repay).  The ROI merely states that he would have owed $40,434.00 if he was not entitled to live outside the barracks; or $8,710.02 if he was entitled to live outside the barracks.

5.  The applicant has failed to provide sufficient evidence to show the ROI was in error.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X__ _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20130015859, dated 10 October 2013.



      _______ _  X ______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120022197



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ABCMR Record of Proceedings (cont)                                         AR20130022305



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